In my Garden: A Confused Tree


Some of my friends know that I am an avid gardener. Over the past several years, I have been transforming both my front and backyard into something more of an mini-orchard/farm.  The farmer in me enjoys the connection to the land, the work that is part of producing food, and the idea of self-sufficiency.  But it’s definitely still a work-in-progress.  My front yard is now a mini-orchard, with the lawn that used to grace it now gone and replaced with wood chips.  (Some of my neighbors probably see it as as something of an eyesore; but I feel good about getting rid of the front lawn, which was purely ornamental and served no useful function (at least not to me) .)

This morning, as I was inspecting my fruit trees  (in my suburban version of “walking the land,” something I used to do when we still lived in Vermont and had 2 acres of land for our house),  I noticed this on one of my Asian Pear  tree.

It appears to be a set of blossoms.  In late September!  After I just harvested a nice crop of pears just a month ago! Obviously, the tree is confused.

Ordinarily, fruit trees require some period (several months) of chill time before they will bloom and fruit again.  However, we’ve had a rather hot summer.   It is rather mysterious.  In June, something similar happened to my blueberry bushes.  One of them also set some blossoms, well after I had already picked all of the ripe berries.  Those few additional berries just ripened recently.  I had attributed that to a late bloom.  But the blooms on the pear tree are a real anomaly.  Very peculiar indeed.

Santa Clara Law Environmental Law Society Beach Cleanup 2017



The 2017 Santa Clara Law Environmental Law Society Beach Clean-up Activity was another success!  I joined about 15 students and friends on Saturday morning at Natural

Bridges State Beach for several hours of beachcombing for trash.  We were not the only folks out there; there were groups of boy scouts, individual families, and other community groups.  (From the matching T-shirts, it looked liked the local Sony Company office had a group there as well.)  While the morning was overcast, it was a actually quite a beautiful place.  My small group (Laura, Cynthia, and Robin) came up with about 20 pounds of trash, including many small items like cigarette butts and food wrappers to some water and beer bottles.  (The photo of somebody in the brush is of me going after some plastic plates that had been thrown deep into the bushes.  Boooooh, not cool. . . ) Quite amazing how things add up.  Another small group came up with more than 40 pounds of trash.

IMG_6419Beyond the typical trash, here were some other items of interest:  an improvised bong (yes, you read that  correctly), lots of shoes, a gasoline can, a propane torch, and an orange traffic cone (not near the road, but deep inside the bushes).  Sadly, we also came across a dead sea-otter.  A rather large animal.  All we could was to report it to the state park official onsite.

All in all, it was a great occasion of community service.  Hooray for the Santa Clara Law Environmental Law Society and all the other folks across the state that pitched in for this year’s coastal clean-up!



Reminder: Regarding Job Openings, Internships, Fellowships, and Other Environmental Law Related Opportunities


I regularly post such items when they come across my email or I become aware of them otherwise.  A lot of what I post is related to non-profit, academic, or the government sector (including international organizations).  These items are usually sorted below the blog entries that I write about substantive issues and thus come further down on the front page.  The easier way to view these opportunities postings is to click on the “Jobs and Other Opportunities” link at the top of the blog page.

Tropical Storm Harvey and Houston Floods


Most of yesterday, I was following the flooding in Houston via online news sites and twitter.  The misery and destruction that Tropical Storm Harvey has brought there has been incredible.  With up to 50 inches of rain expected by the end of this storm, it has created a deluge in parts of Houston that has been described by the National Weather Service as “unprecedented” and having impacts that are “unknown and beyond anything experienced.”

I have a personal interest in the events since my parents live right in the flooded areas in the Southwest part of Houston.  Yesterday, their neighborhood was completely inundated, with all the streets looking like canals.  TV news were showing people getting rescued from homes many feet under water and people walking through chest-high water to get to dry ground.  Fortunately for my parents, the waters stopped rising just after the water had started entering their house.  Hopefully, the flood damage at this point is not too bad.  However, more rain is expected over the next few days.

In looking for information about conditions in the area, I came across the stream level gauges that the Harris County Flood Control District operates in the Houston area.  My parents live not too far, maybe just a mile, from the Brays Bayou, which overflowed yesterday. I think this may have been the first time that has happened.  In almost 30 years that they have lived there, they have never seen floods coming into their house.  However, the data from that gauge (Brays Bayou at Stella Link) was fascinating.

Braes Bayou at Stella Link 8-28-2017

When the flooding was worst yesterday (Sunday), the water was about a foot over the banks of the stream, at a stream level of almost 50 ft.  It then started to recede by a few feet, probably because the rains did not come down as heavily in their area. Today, it appears to be rising again.

Braes Bayou at Stella Link pt2 8-28-2017

If one looks at yesterday’s stream level and the historical information, one sees something remarkable.  Yesterday’s top stream level of 49.87” rose to that of a 100-year flood (49.60”).  (The stream bank stands at 48.40”, which means that at its highest level, the stream was overflowing its banks by about a foot.)  When FEMA designates 49.60” as a 100 year flood level, it expects such a deluge to happen, on average, only once every hundred years.

So, Ok – Harvey has been said to be unprecedented in its impact.  And a 100-year flood might not be so unexpected.  (Others have thrown around the comparison to a 500-year flood.)  But past data show that stream elevation was at 48.38” in 2001 (during Hurricane Allison, another really bad event that flooded most of the same parts of Houston) and at 48.30” in 2015, just a couple of year ago.  (Both times, my parents were lucky and were pretty much unaffected.) Both of those levels exceed the 50 year flood levels, 47.50”.

Taken together, this means that over the last 16 year, Houston (and maybe more specifically, the area where my parents live) has had two 50-year flood and one 100-year flood level events!  (And stream levels have reached 10-year flood levels in 5 of the last 10 years — an event that that has been calculated to have a 10% probability has occurred 50% of the time over the last 10 year.)  Hmmm.

Of course, these data points are very specific to one area, and one would need much more data to draw broader conclusions.  (And in any event, this storm and flood is not over, yet.)  But the events are also consistent with the greater variations in weather and higher frequency of severe storm events that scientists have predicted as an effect of climate change.  If this is a sign of what’s to come, as greenhouse gas concentration in the atmosphere rise, we are in a lot of trouble.

I sure hope that I am wrong.  Either way, this is one more example of what is at stake in the effort to bend the curve on greenhouse gas emission.


Lisa Jackson life story on Moth Radio Hour (original broadcast of May 31, 2012)


The Moth Radio Hour recently rebroadcast the show where Lisa Jackson, the first African-American Administrator of the U.S. EPA (2009-2013), told the story of how she became an engineer and then entered the environmental protection field.  I think it’s a great story for young folks, including my law students, to hear about one person’s path into environmental policy and government service, especially that of a racial minority.  Enjoy!


Op-ed on California Electric Vehicle Rebates


Here is an op-ed piece of mine in support of rebates for electric vehicles, appearing in various newspapers.  The Sacramento Bee is running it today:


Yes: Rebates a prudent way to save world from climate change

By Tseming Yang

California Gov. Jerry Brown may soon sign legislation extending cash rebates given to residents who buy low-emission vehicles from Tesla and other automakers.

While the bill’s details are still evolving, the governor should in principle sign off on the subsidies because they will further spur California’s transition to a clean-energy economy and improve the state’s air quality.

Addressing climate change is the chief motivation for the rebates, which have been in place for years and would be beefed up through the pending legislation. With a populous coastline and dependence on seasonal rains, California is particularly vulnerable to the dangers posed by global warming, including rising sea levels and more-frequent droughts and wildfires. Reducing the state’s greenhouse gas emissions would help not only California but, given the Golden State’s large population, the rest of the world as well.

Among low-emission modes of transit, electric vehicles in particular present a big opportunity to reduce carbon pollution.

And while the use of most EVs does result in some emissions – the electricity used to power them has to come from somewhere, including fossil fuel-burning plants – such vehicles are, all things considered, far friendlier to the environment than traditional cars, a 2015 Union of Concerned Scientists analysis showed. That’s not to mention California’s requirement that utilities in the state to get half their power from renewable sources by 2030, with tougher standards anticipated in the future.

Ultimately, these purchase rebates help create a robust market for EVs and push the transportation sector into better participating in California’s broader transition to clean energy.

Air quality is a key concern.

For decades, vehicle tailpipe emissions have contributed to smog and other toxic air pollution conditions, which are especially harmful to young children, the elderly, and those with asthma and other lung function impairments. Shifting the mix of vehicles on California’s roads toward EVs has become a necessity.

And undoubtedly, the rest of the world stands to benefit from California’s climate leadership.

Decreasing the demand for oil will reduce the need for risky exploration projects and lessen the chances of environmental disasters like the 2010 BP oil spill in the Gulf of Mexico.

Finally, supporting the growth of California’s electric car industry is an investment in the state’s clean-tech sector, which will occupy an increasingly important role in the global economy in years to come.

California’s rebates send an unambiguous signal that, even with the Trump administration’s rejection of the Paris climate agreement, the state is still committed to fostering a thriving clean-tech industry.

Ultimately, California’s low-emission vehicle rebates will support three critical outcomes: lowering carbon emissions harmful to the environment, reducing smog and other forms of air pollution, and boosting economic activity in the state’s clean-energy industry.

That seems like a pretty good deal to me.


Jim Rubin



I am deeply saddened that my friend Jim Rubin, a great Washington, DC environmental lawyer, passed away last week.   The environmental bar lost an incredibly  talented and dedicated attorney far too soon.

Law 360 has a write-up  on him.

Tidbits: 40th SF Marathon


The 40th San Francisco Marathon took place today, Sunday, July 23.  I ran the first half of it, which included the stretch across the Golden Gate Bridge and ended in Golden Gate Park.  [The second half of the marathon then looped through the Park and ended up back at the Embarcadero start line.]  What a great experience to run across the bridge (even though it was foggy as pea soup)!  I was able to keep up with the 2:20 pace maker and made through the half marathon finish line at just under that time.  (I am on the left.) My next half marathon will be the re-match race with Professor Frank Wu (Hastings) and Carol Suzuki (New Mexico) at the San Jose Rock’n Roll Half Marathon



Commentary on Sustainable Land Use in Monterey County Hospitality Industry


Here is a nice op-ed piece in the Monterey County Weekly on sustainable land use in the hospitality industry. It was co-authored by my research fellow Laura Davis, who is also a Board member of Landwatch Monterey County.


Environmental Criminal Enforcement in Taiwan


With Kaohsiung Environmental Protection Bureau Director General Meng-Yu Tsai

On Friday (June 16), I led a workshop on environmental criminal enforcement at the Kaohsiung City/County Environmental Protection Bureau in South Taiwan (where I was for a conference at the National University of Kaohsiung).  It was a really fascinating discussion with the local regulators about the issues presented by the choice of administrative vs. criminal enforcement and how the US approach differs.   (In Taiwan, environmental enforcement proceeds through an administrative court system that is the mark of a number of civil law systems.)  While there is close cooperation by the environmental agencies with prosecutors in investigating and bringing criminal cases, there is still a learning curve on these issues.

More importantly, like in the United States, the applicable burden of proof on these issues is controversial.  This also came up in an interesting meeting I had with the Taiwan Environmental Protection Administration Minister Dr. Ying-Yuan Lee (whom I had the honor to spend a little bit of time with a few days ago).  A notable prosecution in recent years against a semiconductor company had resulted in a criminal conviction for pollution violations.  Unfortunately, the subsequent appeal led to a reversal of the conviction, primarily because the appeals court thought that a higher standard of proof should have been applied by the trial court.

with Minister Ying-Yuan Lee (center)

One take-away for me from these meetings and workshops is that criminal environmental enforcement issues are clearly being thought about very carefully.  They are important as a tool for supplementing traditional environmental enforcement penalties, especially when those non-criminal penalties are not providing a sufficient inducement to polluting industries to comply with the law.  Another take-away was that the effect of China’s continuing efforts to isolate Taiwan internationally has also impeded cooperation on environmental matters.  Too bad, given Taiwan is doing a lot of work in this area. But also because Taiwan is heavily industrialized in some parts of country, including Kaohsiung, and so has much experience to share. 


What company is the US keeping in the business of international environmental treaties?


The coverage of the Paris Agreement in light of Trump’s withdrawal decision has been quite remarkable.  It seems as if the world just got a crash-course on the treaty.  Every news article is now able to point out that the Agreement is essentially non-binding, that nothing will change for at least three years (since the Agreement does not allow withdrawal during the first three years), and that there are just a couple of countries that have not signed the Agreement, etc. etc. (Nicaragua and Syria, see explanation by Washington Post.)

There are only a few environmental treaties where membership is truly universal, such as the Montreal Protocol on Ozone Depleting Substances and the underlying Vienna Convention on the Protection of the Ozone Layer, as well as the UN Framework Convention on Climate Change (the underlying framework treaty for the Paris Agreement), all of which have 197 member countries.  That includes the 193 UN countries, plus the European Union, the Holy See/Vatican, and a couple of other small non-UN member states.

But there are also a number of other international environmental treaties where the US part of a small group of countries that are not members.  For example, the Basel Convention on the Transboundary Movement of Hazardous Wastes has 185 member countries.  But apart from the U.S., the only other states that are not members are small island nations or poor developing countries –  Angola, Fiji, Grenada, Haiti, San Marino, Sierra Leone, Solomon Islands, South Sudan, Timor-Leste, Tuvalu, and Vanuatu.

However, the US is in an even more lonely place with the 1992 Convention on Biological Diversity (CBD).  That treaty is the other important environmental treaty from the 1992 Rio Earth Summit (the first one being the UN Framework Convention on Climate Change).  The CBD has 196 member states (including the EU and other small non-UN countries).  The Holy See is not a member – of course, that seems to make sense since it has little territory and thus little in natural area to control.  The more notable exception however is . . . the U.S.




Position: Entry-Level Teaching Position, University of Denver Sturm College of Law (Deadline: unknown, Denver, CO)

Entry-Level Teaching Positions
The University of Denver Sturm College of Law seeks applications from entry-level and junior-lateral candidates for one or more full-time, tenure-track faculty positions at the rank of Assistant or Associate Professor of Law to begin in August 2018. We seek candidates with J.D. or Ph.D. degrees (or their equivalent), exceptional academic records, relevant professional experience, and the capacity to make outstanding contributions in the areas of scholarship, teaching, and service. Although we welcome candidates across all subject matter areas and methodological perspectives, we anticipate particular interest in the following fields: environmental and natural resources law, including both doctrinal and clinical teaching; evidence; healthcare law; professional responsibility; and regulatory compliance. Currently celebrating its 125th anniversary year, Denver Law ( is a leader in experiential and interdisciplinary legal education, and is located in one of the nation’s most dynamic, iconic, and livable cities. Interested persons should send a cover letter, resume (including at least three references), teaching statement, and research agenda to Professor Alan Chen, Chair, Faculty Appointments Committee ( The University of Denver is committed to enhancing the diversity of its faculty and staff and encourages applications from members of historically underrepresented minority groups, women, members of the LGBTQ community, persons with disabilities, and veterans. The University is an equal opportunity/affirmative action employer.

Position: Tenure-track faculty opening, University of Tulsa College of Law (Deadline: unknown, Tulsa, OK)

THE UNIVERSITY OF TULSA COLLEGE OF LAW invites applications from both entry level and experienced faculty for possible tenure-track faculty positions beginning in the 2018- 2019 academic year. We seek candidates with superior academic records whose performance to date has demonstrated excellence in scholarship and teaching or a strong potential to excel as scholars and teachers. The areas of interest may include, but are not necessarily limited to, cyber law, cyber security, energy, natural resources, social justice, human rights, health law, constitutional law, civil procedure, property, and other first year and required courses. The University of Tulsa College of Law, as an equal opportunity/affirmative action employer, is committed to equality of opportunity in its employment of faculty and staff, without discrimination on the ground of race, color, religion, national origin, gender, age, disability, or sexual orientation.
Members of under-represented groups are strongly encouraged to apply. If you would like to learn more about the College generally, you may visit our website at Please submit letters of interest and résumés to Prof. Robert Spoo, Chair, Appointments Committee, University of Tulsa College of Law, 3120 E. 4th Place, Tulsa, OK 74104, or by email to

Position: Tenure-track faculty position, Ohio State University Moritz College of Law (deadline: unknown, Columbus, OH)

Note that natural resources is a secondary area of interest for this search.


The Ohio State University Moritz College of Law seeks applications from entry-level candidates for at least one tenure-track position, to begin in the 2018-2019 academic year. Our primary areas of need are Criminal Law and Criminal Procedure, Legal Writing, and Race and the Law. Secondary areas of need are Alternative Dispute Resolution, Antitrust, Banking and Insurance Law, Business Law (including Business Associations and Securities Regulation), Civil Procedure, Commercial Law, Employment and Labor Law, Evidence, Law and Technology, Natural Resources (e.g., water, wildlife, energy, oil and gas, mining, land use), Poverty/Social Welfare Law, Professional Responsibility, Torts, and Wills & Trusts. A J.D. (or the equivalent) is required. Interested candidates should send resumes and a cover letter to Professor Daniel Tokaji, Chair, Faculty Appointments Committee,